Determine Whether a Social Media Post Is Protected by the NLRA

Key Points

  • An employee's social media posts (e.g., on Facebook or Twitter) may constitute protected activity under the National Labor Relations Act (NLRA) if they address a term or aspect of employment and are read by fellow co-workers, even though the posts also may be seen by non-coworker "friends."
  • If an employer permits employees to use social media sites on employer-provided equipment, the employer may not be able to prohibit employees from using such sites to send pro-union messages.
  • An employer may argue against the protected aspect of a social media post by showing that it was malicious, reckless, false or an individual complaint, rather than a complaint on behalf of fellow coworkers. Because each social media post is unique, an employer may need to consult legal counsel regarding appropriate responses.

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